Dheeraj Verma Vs State
of Himachal Pradesh
J U D G M E N T
JAGDISH SINGH KHEHAR,
J.
1.
These
appeals have been preferred by Dheeraj Verma (original accused no.1) and Deepak
Verma (original accused no.2) so as to assail the order of conviction and sentence
dated 30.12.2005 rendered in Sessions Trial no.55 of 2003 by the Sessions Judge,
Chamba, as also, the decision rendered by the Himachal Pradesh High Court in
Criminal Appeal No.27 of 2006, whereby, the conviction and sentence awarded by the
Sessions Judge, Chamba, on 30.12.2005, came to be upheld on 2.9.2009.
2.
The
prosecution, in order to bring home the case against the appellants-accused examined
as many as 27 witnesses. The prosecution story, as is emerged from the statements
of the witnesses, produced by the prosecution, reveals that Kamini Verma alias
Doli resided with her father Arun Kumar PW2 in Mohalla Sultanpur, Chamba, in
the State of Himachal Pradesh. Kamini Verma was married to Anmol Verma alias Munna
on 6.2.2003. Thereafter, she had been residing along with her husband at
Mukerian in the State of Punjab. On 28.7.2003, Kamini Verma came to her
father's house in Chamba from Pathankot. She had arrived at 05:30 hrs. She had
been escorted to her father's house by Rakesh Verma (her paternal uncle, i.e., younger
brother of her father Arun Kumar, PW2), and his wife Veera.
3.
About
a year before the marriage of Kamini Verma with Anmol Verma, Deepak Verma, appellant-accused
no.2 had approached Arun Kumar PW2 (father of Kamini Verma) with a marriage proposal
for Kamini Verma, with his younger brother Dheeraj Verma appellant-accused
no.1. Kamini Verma's father, Arun Kumar did not accept the proposal. Thereafter,
Kamini Verma was married to Anmol Verma on 6.2.2003. Earlier, Dheeraj Verma and
Deepak Verma, were tenants in the house of Arun Kumar (PW2, father of Kamini Verma).
The two accused were originally residents of Gurdaspur in the State of Punjab.
The father of the
accused, namely, Shyam Lal, a goldsmith, had moved to Chamba in the State of
Himachal Pradesh, and had started to reside in the house of Arun Kumar PW2. Shyam
Lal has reportedly now gone back to the State of Punjab. The affinity between the
family of Arun Kumar (PW2, father of Kamini Verma) and Shyam Lal (father of appellants-accused
Dheeraj Verma and Deepak Verma) was also based on the fact, that Deepak
Verma, appellant-accused no.2, had been giving home tuitions to Kamini Verma
and her brother Deepak Kumar (PW1).
4.
Kamini
Verma reached Chamba from Pathankot on 28.7.2003 at about 05:30 hrs. Dheeraj Verma,
appellant-accused no.1 and Deepak Verma, appellant-accused no.2 came to the
house of Arun Kumar (PW2, father of Kamini Verma) at Mohalla Sultanpur, Chamba
at about 10:30 hrs. They had come on a scooter. Dheeraj Verma, appellant-accused
no.1, had in his possession, a double barrel gun. According to the case of the prosecution,
after taking breakfast, Kamini Verma went to the kitchen to clean utensils. Having
cleaned the utensils she came out into the courtyard. As she stepped into the
courtyard, Dheeraj Verma, appellant-accused no.1 fired one shot at her from his
double barrel gun.
This shot hit her in
the abdomen. Dheeraj Verma, appellant-accused no.1, then fired another shot at
Kamini Verma. The second shot hit her on the left shoulder. Sumitri Devi (PW4,
grandmother of Kamini Verma) who had also come into the courtyard, tried to
catch the two accused who were making good their escape. Dheeraj Verma, appellant-accused
no.1 hit Sumitri Devi PW4 in her abdomen, chest and on her right wrist, with
the butt of his double barrel gun. Later, when she was medically examined (on
3.8.2003), she was found to have suffered multiple bruises, but the nature of
injuries was found to be simple. Even though, Sumitri Devi PW4 had picked up a stone
and had thrown it at the appellant-accused no.1, but she had missed her mark.
5.
According
to the prosecution story, after two shots had been fired by Dheeraj Verma,
appellant-accused no.1, Deepak Verma, appellant-accused no.2 handed over two cartridges
to Dheeraj Verma, appellant-accused no.1. The appellant-accused no.1 then reloaded
his gun and shot at Rakesh Kumar (maternal uncle of Kamini Verma) who had by
then come into the courtyard, and was trying to lift Kamini Verma. The shot
fired at Rakesh Kumar (maternal uncle of Kamini Verma) hit him on the left side
of the lower abdomen. The two accused then fled away. At the time of
occurrence, Sonia (PW3, wife of Rakesh Kumar, maternal uncle of Kamini Verma) on
hearing the first shot had also rushed to the courtyard. She tried to assist
her husband Rakesh Kumar and her niece Kamini Verma.
6.
Both
Kamini Verma and Rakesh Kumar were taken to the Zonal Hospital, Chamba
immediately after the occurrence. Rakesh Kumar was declared dead at the said Hospital
at 12:30 hours on the date of the occurrence itself (i.e., on 28.7.2003). He
was stated to have died due to a gun shot injury causing rupture of major
vessels and visceral organs leading to hemorrhagic shock and death.
7.
The
police post, Sultanpur was informed of the occurrence telephonically, leading
to the recording of Daily Diary No.4 at 10:30 a.m. on 28.7.2003. ASI Jog Raj
PW26 along with other police personnel, on receipt of aforesaid information,
proceeded to Zonal Hopital, Chamba. ASI Jog Raj moved an application to the Senior
Medical Officer, Zonal Hospital, Chamba for seeking medical opinion whether Kamini
Verma alias Doli was fit to make a statement. In the first instance Dr. D.P.
Dogra PW11 gave a report at 12:20 hrs. (on 28.7.2003) to the effect that Kamini
Verma was not fit to make her statement. The said opinion was tendered as her pulse
rate and blood pressure, at that time, were not recordable, and also because, she
had no control over her speech. Subsequently, at 13:00 hrs. on 28.7.2003
itself, Dr. D.P. Dogra PW11 declared her medically fit.
It was thereafter,
that the statement of Kamini Verma came to be recorded by ASI Jog Raj in the
presence of Dr. D.P. Dogra. The statement recorded was then read out to Kamini Verma,
whereupon, in token of its correctness, she affixed her right thumb impression
on the same. Both Dr. D.P. Dogra PW11 and ASI Jog Raj PW26 recorded their endorsements
on the statement of Kamini Verma. The statement of Kamini Verma was the basis
of registering FIR No.182 of 2003 at Police Station Sadar, Chamba on 28.7.2003.
Kamini Verma repeated the same version of the incident to her father Arun Kumar
PW2 on her way to Amritsar (from Chamba).
8.
Kamini
Verma, who was originally taken to Zonal Hospital, Chamba, was referred to
Zonal Hospital, Dharamshala. However, on her discharge from Zonal Hospital,
Chamba, she was taken for treatment to Ram Saran Dass, Kishori Lal Charitable
Hospital, Amritsar (Kakkar Hospital, Amritsar) in the State of Punjab. Kamini
Verma died at Kakkar Hospital, Amritsar on 1.8.2003 at 04:00 hrs. In the
post-mortem report of Kamini Verma (Exh.PW13/C) it was opined, that she had died
due to gun short injuries leading to injuries to her abdominal viscera and disseminated
intravascular bleeding leading to shock and death.
9.
The
pellets, recovered from the wounds of Kamini Verma and from the dead body of Rakesh
Kumar at Zonal Hospital, Chamba, were handed over to 6the police. Inspector Khub
Ram PW27, went to the place of occurrence for inquest. From the spot, i.e.,
courtyard of the house of Arun Kumar (PW2, father of Kamini Verma) he collected
blood samples from the floor, two plastic caps, 35 pellets lying on the floor, besides
3 pellets embedded in a door of the house. Two empty cartridges were also recovered
from outside the gate of house of Arun Kumar PW2.
10.
On
the date of occurrence itself, i.e., on 28.7.2003, the scooter, on which the
appellant-accused nos.1 and 2 had made good their escape was stopped at
Bhatulun Morh at a police "nakka" while they were proceeding towards
Khajjiar from Chamba. Dheeraj Verma and Deepak Verma, appellant-accused nos.1
and 2 were identified. A double barrel gun, which was in their possession, was
found with one live cartridge and one spent cartridge. The gun, the live as well
as spent cartridges, and the scooter on which they were apprehended, bearing registration
no.PB-58-A-0285 were taken into possession by the police. Both the accused were
also taken into custody. On the personal search of both the accused, four live
cartridges were recovered from the pocket of Dheeraj Verma, appellant-accused
no.1. Based on a disclosure statement made on 31.7.2003 by Dheeraj Verma appellant-accused
no.1, more live cartridges beside four empty cartridges were recovered from a
cupboard in his bedroom. The licence of the double barrel gun was also
recovered from their residence.
11.
The
double barrel gun recovered from the appellant-accused nos.1 and 2 was sent to the
Forensic Science Laboratory, Bharari, Shimla, Himachal Pradesh. In his report, the
Assistant Director opined; firstly, that the double barrel gun recovered from the
accused was capable of firing; secondly, that 3 7empty cartridges recovered from
the place of occurrence may have been fired from the recovered gun; and
thirdly, that the pellets recovered may have been fired from the empty
cartridges recovered from the spot.
12.
On
the completion of investigation, the prosecution presented a challan in the
court of Chief Judicial Magistrate, against both the accused, under sections 302
and 323 read with section 34 of the Indian Penal Code, besides section 27 of the
Indian Arms Act. The Chief Judicial Magistrate committed the case for trial to the
Court of Sessions on 22.10.2003. On 12.1.2004 the Sessions Judge, Chamba,
framed the charges, as were proposed by the prosecution. In order to bring home
the charges, the prosecution examined as many as 27 witnesses.
The cumulative effect
of the statement of witnesses examined by the prosecution has been narrated in
the foregoing paragraphs. After recording the prosecution evidence, the
statements of Dheeraj Verma, appellant-accused no.1 and Deepak Verma,
appellant-accused no.2 were recorded under Section 313 of the Criminal Procedure
Code. The accused, besides denying the correctness (or knowledge) of the
factual position, with which they were confronted, alleged that a false case has
been registered against them due to business rivalry. It is pertinent to
mention, that the father of the deceased Kamini Verma, i.e., Arun Kumar PW2, as
also, the father of the appellant-accused Dheeraj Verma and Deepak Verma,
namely, Shyam Lal, were admittedly goldsmiths, and were engaged in the said business.
13.
Sessions
Trial No.55 of 2003 came to be disposed of on 30.12.2005 whereby the Sessions Judge,
Chamba convicted the accused Dheeraj Verma and Deepak Verma for offences
punishable under section 302 and 323 read with 8section 34 of the Indian Penal
Code, as also, under section 27 of the Arms Act. On the date of their conviction,
i.e., on 30.12.2005 itself, after affording an opportunity of hearing, the appellants-accused
nos.1 and 2 were sentenced under Section 302 read with Section 34 of the Indian
Penal Code, to imprisonment for life and to pay fine of Rs.25,000/- each (in
default of payment of fine, they were to undergo further simple imprisonment for
two years).
The appellants-accused
nos.1 and 2 Dheeraj Verma and Deepak Verma were also sentenced under Section
323 read with Section 34 of the Indian Penal Code, to undergo simple imprisonment
for a period of six months and to pay a fine of Rs.1000/- each (in case of default
of payment of fine, they were to undergo further simple imprisonment for one month).
The appellants-accused Dheeraj Verma and Deepak Verma were sentenced to undergo
two years rigorous imprisonment, for the offence punishable under Section 27 of
the Arms Act. The Sessions Judge, Chamba also ordered, that all the substantive
punishments were to run concurrently.
14.
Dissatisfied
with the order rendered in Sessions Trial No.55 of 2003 by the Sessions Judge, Chamba
on 30.12.2005, the appellants-accused nos.1 and 2 Dheeraj Verma and Deepak Verma
preferred Criminal Appeal No.27 of 2006 before the High Court of Himachal
Pradesh. Criminal Appeal No.27 of 2006 was, however, dismissed by the High
Court on 2.9.2009, on merits, as well as, on the quantum of sentence imposed on
the appellants-accused.
15.
Dissatisfied
with the order dated 30.12.2005 passed by the Sessions Judge, Chamba in Sessions
Trial No.55 of 2003, as well as, the order dated 2.9.2009 passed by the High Court
of Himachal Pradesh in Criminal Appeal No.27 of 2006, the appellants-accused
nos.1 and 2 Dheeraj Verma and Deepak Verma have approached this Court by filing
the instant appeals.
16.
The
first and foremost contention advanced at the hands of the learned counsel for
the appellants was, that the case set up by the prosecution was false and
fabricated. It was submitted, that the facts brought forth by the prosecution
clearly lead to the inference, that there was no involvement whatsoever of the
two accused Dheeraj Verma and Deepak Varma. In so far as the instant aspect of
the matter is concerned, it was the contention of the learned counsel for the appellants
that the statements of Deepak Kumar PW1, Arun Kumar PW2, Sonia PW3 and Sumitri
Devi PW4 reveal, that the two accused were well-known to the members of the family
of the deceased Kamini Verma. In this behalf it was sought to be asserted, that
according to the prosecution version, the two accused Dheeraj Verma and Deepak Verma
had come to reside in the house of Arun Kumar PW2 along with their father Shyam
Lal, as tenants.
According to the
learned counsel, it is also the case of the prosecution, that Deepak Verma, appellant-accused
no.2 had been giving home tuitions to the deceased Kamini Verma and her brother
Deepak Kumar PW1. Inspite of being in an effective position to identify both
the accused on account of their long past relationship, it was submitted, that
the names of the two accused Dheeraj Verma and Deepak Verma came to be disclosed,
for the first time at 13:00 hrs., through the statement of the deceased Kamini
Verma, which was recorded by the ASI Jog Raj PW26. Stated in other words, it is
the contention of the learned counsel for the appellants, that even though the
two accused were well-known to the entire family of the deceased Kamini Verma, yet
all the family members of the 10deceased Kamini Vemra remained tight-lipped
till the eventual disclosure of the names of the two accused by Kamini Verma herself,
at the Zonal Hospital, Chamba.
It is, therefore, the
contention of the learned counsel for the appellant, that the statements of all
the eye-witnesses (Deepak Kumar PW1, Sonia PW3 and Sumitri Devi PW4) who were
close family members of the deceased Kamini Verma and Rakesh Kumar, and had known
the two accused for a long time, should not be relied upon. It is sought to be suggested,
that all these close relations of the deceased Kamini Verma must be deemed to
have been tutored, to make false statements against the appellants Dheeraj Verma
and Deepak Verma at the instance of the investigating officers.
It is submitted that
the crime in question came to be committed at 10:30 hrs., on 28.7.2003, and yet
none of the aforesaid eye-witnesses disclosed the names of the offenders. It is
sought to be suggested, that the names would have been disclosed only if they
had actually witnessed the occurrence. It is therefore, submitted that none of the
aforesaid eye witnesses actually witnessed the occurrence. It is, accordingly, the
submission of the learned counsel for the appellant, that the prosecution
version deserves to be rejected outright, and the appellants-accused Dheeraj
Verma and Deepak Verma deserve to be acquitted.
17.
17.
We have given our thoughtful consideration to the first and the foremost contention
advanced at the hands of the learned counsel for the appellants, as has been
noticed in the foregoing paragraph. The facts, as they unfold from the prosecution
story reveal, that the occurrence took place at 10:30 hrs. on 28.7.2003. Both Kamini
Verma and Rakesh Kumar were taken to the Zonal Hospital, Chamba immediately after
the occurrence. Rakesh Kumar was 11declared dead at 12:30 hrs. on the date of
occurrence, i.e., on 28.7.2003 itself. The condition of Kamini Verma was
critical at that juncture.
This is evident from
the fact that Dr. D.P. Dogra PW11 gave a report at 12:20 hrs., (on 28.7.2003)
to the effect, that Kamini Verma was not fit to record her statement. The
attending doctor had recorded, that her pulse rate and blood pressure were not
recordable. In the peculiar facts, as have been noticed hereinabove, it is
evident that the first endeavour of all close family members would have been,
to have the two injured Kamini Verma and Rakesh Kumar treated at the Zonal
Hospital, Chamba. None of the close family members could have been expected to
proceed to the police station to lodge a report when both the injured were
critical. Full attention for the welfare of the two close family members would have
been the expected behaviour of all family members. The action to be taken
against the assailants, would have been a matter of secondary concern.
The contention of their
not having made any statements at that juncture to the police, cannot
therefore, be considered unnatural. Kamini Verma was declared medically fit at
13:00 hrs., on 28.7.2003 by Dr. D.P. Dogra PW11. She specifically identified
the two accused Dheeraj Verma and Deepak Verma as the perpetrators of the
occurrence. There is no reason whatsoever to doubt the dying declaration made
by Kamini Verma. Besides, the dying declaration of Kamini Verma, the
prosecution endeavoured to establish the guilt of the accused, by producing three
eye-witnesses. Deepak Kumar PW1, (aged 14 years at the time of occurrence), who
was in the courtyard itself at the time of occurrence was the younger brother
of the deceased Kamini Verma.
In his deposition, he
reiterated the factual position recorded by Kamini Verma in her dying declaration.
The grand-mother of the deceased, namely, Sumitri Devi PW4, aged 61 years, is a
stamped witness. At the time of occurrence she was hit by Dheeraj Verma, appellant-accused
no.1, in her abdomen, chest and on her right wrist with the butt of his double
barrel gun. She also identified the accused in her statement. On medical examination
she was found to have suffered multiple bruises, which could have been caused by
the butt of a double barrel gun. Additionally, Sonia PW3 is also an eye-witness
whose statement was recorded.
She was the wife of the
deceased Rakesh Kumar. She had come into the courtyard on hearing the first
shot fired at Kamini Verma. The dying declaration of Kamini Verma was supplemented
by Sonia PW3 as well. The aforesaid three witnesses, a young boy, the wife of the
deceased and an old grandmother are natural witness, whose presence at the place
of occurrence, does not cast any shadow of doubt. The prosecution was able to
establish the motive of the appellants-accused in having committed the crime. In
so far as the instant aspect of the matter is concerned, the alleged motive of
declining the marriage proposal of the appellant-accused no.1, at the hands of
his elder brother, appellant-accused no.2 Deepak Verma was reiterated by Deepak
Kumar PW1, Arun Kumar PW2, Sonia PW3 as also Sumitri Devi PW4, as well as, by Kamini
Verma in her statement recorded by ASI Jog Raj PW26.
It is only on account
of the rejection of the aforesaid marriage proposal that Dheeraj Verma and
Deepak Verma, the appellants-accused nos.1 and 2, as an act of retaliation and
vengeance, jointly committed the offence in question. It is also necessary to notice,
that no reason whatsoever emerges from the evidence produced before the Trial
Court why the family of the deceased Kamini Verma and/or Rakesh Kumar would falsely
implicate the accused-appellants nos.1 and 2. The cumulative effect of all the factors
mentioned above, clearly negate the suggestions/ submissions advanced by the learned
counsel for the 13appellants as a part of his first contention. It is,
therefore, apparent that there is no merit in the first contention advanced at the
hands of the counsel for the appellants.
18.
The
second contention advanced at the hands of the learned counsel for the
appellants was limited to the appellant-accused no.2 Deepak Verma. In so far as
the second submission is concerned, it was sought to be asserted that no role
whatsoever has been attributed to appellant-accused no.2 Deepak Verma. It was pointed
out, that as per the prosecution witnesses, the double barrel gun which came to
be fired at Kamini Verma and Rakesh Kumar, had remained in possession of Dheeraj
Verma, appellant-accused no.1 throughout the occurrence. All the shots were
fired by Dheeraj Verma, appellant-accused no.1.
It was pointed out, that
as per the prosecution story, it was Dheeraj Verma, appellant-accused no.1
alone, who had allegedly fired shots, in the first instance at Kamini Verma,
and thereafter, at Rakesh Kumar. It was submitted, that none of the shots was
fired by Deepak Verma appellant-accused no.2. It is submitted, that even if the
prosecution story is examined dispassionately, it would emerge that Deepak
Verma, accused-appellant no.2 was a mere by-stander, and had no role whatsoever
in the commission of the crime in question. In order to buttress the aforesaid
contention, learned counsel for the appellants, in the first instance, placed reliance
on State of Uttar Pradesh vs. Sahrunnisa & Anr. (2009) 15 SCC 452,
wherefrom he placed emphatic reliance on the following observations:
"18. There can be
no dispute that these two respondents were present and indeed their mere presence
by itself cannot be of criminal nature in the sense that by their mere presence
a common intention cannot be attributed to them. Indeed, they have not done anything.
No overt act is attributed to them though it was tried to be claimed by one of
the witnesses that when the police party reached there they were standing on
one leg. This also appears to be a tall claim without any basis and the High
Court has rightly not believed this story which was tried to be
introduced."Additionally, reliance was placed on Aizaz & Others vs.
State of Uttar Pradesh (2008) 12 SCC 198. In so far as the instant judgment is
concerned, our attention was invited to the following observations:
"11. ...It is a
well-recognised canon of criminal jurisprudence that the courts cannot
distinguish between co-conspirators, nor can they inquire, even if it were
possible, as to the part taken by each in the crime. Where parties go with a common
purpose to execute a common object, each and every person becomes responsible for
the act of each and every other in execution and furtherance of their common
purpose; as the purpose is common, so must be the responsibility. All are
guilty of the principal offence, not of abetment only. In a combination of this
kind a mortal stroke, though given by one of the parties, is deemed in the eye of
the law to have been given by every individual present and abetting. But a party
not cognizant of the intention of his companion to commit murder is not liable,
though he has joined his companion to do an unlawful act. The leading feature
of this section is the element of participation in action.
The essence of
liability under this section is the existence of a common intention animating
the offenders and the participation in a criminal act in furtherance of the common
intention. The essence is simultaneous consensus of the minds of persons participating
in the criminal action to bring about a particular result. (See Ramaswami
Ayyangar vs. State of T.N. (1976) 3 SCC 779). The participation need not in all
cases be by physical presence. In offences involving physical violence, normally
presence at the scene of offence may be necessary, but such is not the case in respect
of other offences when the offence consists of diverse acts which may be done at
different times and places. The physical presence at the scene of offence of the
offender sought to be rendered liable under this section is not one of the
conditions of its applicability in every case.
Before a man can be
held liable for acts done by another, under the provisions of this section, it must
be established that: (i) there was common intention in the sense of a prearranged
plan between the two, and (ii) the person sought to be so held liable had participated
in some manner in the act constituting the offence. Unless common intention and
participation are both present, this section cannot apply. 12. `Common intention'
implies prearranged plan and acting in concert pursuant to the prearranged plan.
Under this section a preconcert in the sense of a distinct previous plan is not
necessary to be proved. The common intention to bring about a particular result
may well develop on the spot as between a number of persons, with reference to
the facts of the case and circumstances of the situation.
Though common intention
may develop on the spot, it must, however, be anterior in point of time to the
commission of offence showing a prearranged plan and prior concert. (See
Krishna Govind Patil v. State of Maharashtra - AIR 1963 SC 1413). In Amrik
Singh v. State of Punjab [(1972) 4 SCC (N) 42] it has been held that common
intention presupposes prior concert. Care must be taken not to confuse same or similar
intention with common intention; the partition which divides their bonds is often
very thin, nevertheless the distinction is real and substantial, and if overlooked
will result in miscarriage of justice. To constitute common intention, it is necessary
that intention of each one of them be known to the rest of them and shared by
them.
Undoubtedly, it is a
difficult thing to prove even the intention of an individual and, therefore, it
is all the more difficult to show the common intention of a group of persons. But
however difficult may be the task, the prosecution must lead evidence of facts,
circumstances and conduct of the accused from which their common intention can
be safely gathered. In Maqsoodan v. State of U.P. [(1983) 1 SCC 218] it was observed
that the prosecution must lead evidence from which the common intention of the
accused can be safely gathered. In most cases it has to be inferred from the
act, conduct or other relevant circumstances of the case in hand. The totality of
the circumstances must be taken into consideration in arriving at a conclusion
whether the accused had a common intention to commit an offence for which they can
be convicted.
The facts and circumstances
of cases vary and each case has to be decided keeping in view the facts involved.
Whether an act is in furtherance of the common intention is an incident of fact
and not of law. In Bhaba Nanda Sarma v. State of Assam [(1977) 4 SCC 396] it was
observed that the prosecution must prove facts to justify an inference that all
participants of the acts had shared a common intention to commit the criminal act
which was finally committed by one or more of the participants. Mere presence
of a person at the time of commission of an offence by the confederates is not,
in itself sufficient to bring his case within the purview of Section 34, unless
community of designs is proved against him (See Malkhan Singh v. State of U.P. (1975)
3 SCC 311).
In the Oxford English
Dictionary, the word `furtherance' is defined as `action of helping forward'. Adopting
this definition, Rusell says that: `it indicates some kind of aid or assistance
producing an effect in future' and adds that any act may be regarded as done in
furtherance of the ultimate felony if it is a step intentionally taken, for the
purpose of `effecting that felony'. (Russel on Crime, 12th Edn., Vol.I, pp. 487
and 488). In Shankarlal Kacharabhai v. State of Gujarat [AIR 1965 SC 260] this
Court has interpreted the word `furtherance' as `advancement or
promotion." Based on the observations recorded in the judgments relied
upon it was submitted, that the appellant-accused no.2 Deepak Verma had no role
in the crime, except that he was present at the place of occurrence. It is therefore
submitted, that his mere presence along with Dheeraj Verma accused-appellant
no.1, cannot be a valid basis for his conviction.
19.
It
is not possible for us to accept the contention advanced at the hands of the learned
counsel for the appellant to the effect, that the appellant-accused no.2 Deepak
Verma was not an active participant in the crime in question. The evidence
produced by the prosecution clearly establishes that the two accused-appellants
nos.1 and 2 Dheeraj Verma and Deepak Verma had come to the house of Arun Kumar PW2
to commit the crime in question on a scooter. It is also apparent that at one
juncture only two cartridges can be loaded in a double barrel gun. With the cartridges
loaded in the gun, the appellant-accused no.1 Dheeraj Verma had fired the first
two shots at Kamini Verma.
Thereafter, there were
no live cartridges in the gun. Sumitri Devi, while appearing as PW4, pointed out,
that after the appellant-accused no.1 Dheeraj Verma had fired two shots at Kamini
Verma, the appellant-accused no.2 Deepak Verma provided two live cartridges to the
appellant-accused no.1 Dheeraj Verma. Dheeraj Verma then reloaded his double
barrel gun with the two live cartridges furnished by appellant-accused no.2
Deepak Verma, and fired one further shot at the deceased Rakesh Kumar. After
the commission of the crime, Dheeraj Verma and Deepak Verma, 17jointly made good
their escape on a scooter bearing registration no. PB-58-A-0285. When the two accused
were apprehended at Bataluan Morh at a police "naka" the appellant-accused
no.2 Deepak Verma was driving the scooter, whereas, appellant-accused no.1
Dheeraj Verma was pillion riding with him.
It, accordingly emerges,
that after having committed the crime, the appellant-accused no.2 Deepak Verma,
also helped his brother appellant-accused no.1 Dheeraj Verma to make good his escape
from the place of occurrence. It is, therefore, not possible for us to conclude
that appellant-accused no.2 Deepak Verma was merely a by-stander, who was incidentally
present at the place of occurrence. In our considered view both Dheeraj Verma and
Deepak Verma jointly planned and committed the crime. The judgments relied upon
by the learned counsel for appellants are inapplicable to the facts and
circumstances of this case. Various eye-witnesses had identified the two accused
who had committed the offence.
The dying declaration
of Kamini Verma and the statements of her relations, who had appeared as prosecution
witness, duly establishes the commission of the crime, as well as, the common
motive for the two accused to had joined hands in committing the crime. The
handing over of two live cartridges by the appellant-accused no.2 Deepak Verma
to his brother Dheeraj Verma, after he had fired two shots from the double barrel
gun with which the crime in question was committed, completely demolishes the
contention advanced at the hands of the learned counsel for the appellants, in
so far as the participation of the appellant-accused no.2 Deepak Verma in the
crime is concerned. For the reasons recorded herein above, we find no merit
even in the second contention advanced at the hands of the counsel for the
appellants.
20.
The
third contention advanced at the hands of the learned counsel for the appellants
was, that there was no motive whatsoever for the appellant-accused no.2 Deepak Verma
to have committed the offence in question. It is the submission of the learned counsel
for the appellants that insult on account of non acceptance of the marriage proposal
already referred to above, may have been felt by appellant-accused no.1 Dheeraj
Verma. There was no question of the appellant-accused no.2 Deepak Verma to have
felt any insult, or to have any motive to commit the offence in question.
On account of lack of
motive to commit the crime on the part of appellant-accused no.2 Deepak Verma,
learned counsel emphatically submits, that the appellant-accused no.2 Deepak
Verma deserves acquittal. In order to supplement his instant contention,
learned counsel placed reliance on a judgment rendered by this Court in State of
Uttar Pradesh v. Rajvir, (2007) 15 SCC 545, wherein the State had approached
this Court against the acquittal of the respondent. The High Court, while
hearing the appeal against the respondent had re-appreciated the evidence by
re-evaluating the statement of witnesses. While two of the accused were found
to be guilty of murder, and accordingly, the sentence passed by the Trial Court
against them was upheld; the High Court was doubtful of the participation of
the respondent in the murder of the deceased, according to learned counsel,
solely on the ground that there was no motive for the respondent to commit the murder
of the deceased.
Adopting a cautious
approach, the High Court had acquitted the respondent by giving him the benefit
of doubt. This Court found merit in the determination of the High Court, and
accordingly, upheld the decision of the High Court by recording the following
observations: "8. We have carefully considered the submissions made by
the learned counsel for the parties. It is the case of the prosecution that the
other two accused, namely, Chander and Chhotey had motive against the deceased and
the respondent had no motive whatsoever against the deceased; all the three accused
were friendly among them.
It is true that PWs 1
to 3 have supported the prosecution case that all the three accused went to the
house of the deceased on the date of the incident and the respondent called the
deceased to attend a patient immediately. PWs 1 to 3 also stated that all the
three accused assaulted the deceased but the evidence of PWs 1 to 3 is specific
and consistent as to the assault by the accused Chander on the deceased with a
knife. As to the assault by the respondent, the statements of the witnesses are
general and vague. No specific overt act is attributed to the respondent. It
may also be mentioned here that there was no recovery of knife from the respondent.
There was recovery of
bloodstained clothes from the accused Chander. It is possible that on the
accused Chander and Chhotey asking the respondent to accompany them to the
house of the deceased to show a patient or the respondent himself might have taken
a patient also for examination by the doctor. Mere presence of the respondent on
the spot when the incident took place was not sufficient to hold that the
respondent had shared the common intention to kill the deceased; particularly so
when the respondent had no motive whatsoever. PW1, the brother of the deceased
himself has stated that the respondent had no ill-will or motive against the
deceased. It is under these circumstances, the motive aspect assumed
importance.
There is no dispute
as to the legal position that in the absence of motive; or the alleged motive having
not been established; an accused cannot be convicted if the prosecution is (sic
not) successful in establishing the crime said to have been committed by an accused
by other evidence. At any rate, a doubt definitely arose in the case in hand as
to what was the reason or motive for the respondent to commit the murder of the
deceased. In State of U.P. v. Hari Prasad [(1974) 3 SCC 673] this Court dealing
with the aspect of motive has stated thus: (SCC pp. 674-75, para 2):
"This is not to
say that even if the witnesses are truthful, the prosecution must fail for the reason
that the motive of the crime is difficult to find. For the matter of fact, it is
never incumbent on the prosecution to prove the motive for the crime. And often
times, a motive is indicated to heighten the probability that the offence was committed
by the person who was impelled by the motive. But, if the crime is alleged to
have been committed for a particular motive, it is relevant to inquire whether the
pattern of the crime fits in with the alleged motive." 20 The present case
is not the one where the prosecution has successfully proved the guilt of the
respondent beyond reasonable doubt by other evidence on record to say motive aspect
was immaterial." Based on the aforesaid factual and legal position, it is
submitted, that the appellant-accused no. 2 Deepak Verma deserved acquittal.
21.
We
have examined the third submission canvassed at the hands of the learned
counsel for the appellants, based on the plea of motive. While dealing with the
second contention, advanced at the hands of the learned counsel for the appellants,
we have already concluded hereinabove, that there was sufficient motive even
for the appellant-accused no.2 Deepak Verma to commit the crime in question, in
conjunction with his younger brother Dheeraj Verma, appellant-accused no.1. Be
that as it may, it would be relevant to indicate, keeping in mind the
observations recorded by this Court as have been brought to our notice by the
learned counsel for the appellants (which we have extracted hereinabove), that
proof of motive is not a sine qua non before a person can be held guilty of the
commission of a crime. Motive being a matter of the mind, is more often than not,
difficult to establish through evidence. In our view, the instant contention
advanced by the learned counsel for the appellant is misconceived in the facts and
circumstances of the case.
In the present case, there
is extensive oral evidence in the nature of the statements of three
eye-witnesses out of which one is a stamped witness, that appellant-accused
no.2 Deepak Verma was an active participant in the crime in question. There is
also the dying declaration of Kamini Verma implicating both the accused. In the
case relied upon by the learned counsel for the appellant, the oral evidence produced
by the prosecution to implicate the respondent with the commission of the crime,
was not clear. Accordingly, in the absence of the prosecution having been able to
establish even the motive, the High Court (as well as, this Court) granted the
respondent the benefit of doubt. That is not so, in so far as the present controversy
is concerned.
The oral evidence against
the appellant-accused no.2 Deepak Verma is clear and unambiguous. Besides, motive
of appellant-accused no.2 Deepak Verma is also fully established. We are therefore
satisfied, that the judgment relied upon by the learned counsel for the
appellant has no relevance to the present case. We, therefore, find no merit even
in the third contention advanced at the hands of the learned counsel for the
appellants.
22.
The
last contention advanced at the hands of the learned counsel for the appellant was,
that the dying declaration of Kamini Verma which became the basis of
registering the First Information Report itself, was forged and fabricated. Learned
counsel for the appellants, vehemently contended that the very foundation of the
prosecution story itself being shrouded in suspicious circumstances, must lead to
the inevitable conclusion, that the appellants-accused have been falsely
implicated in the crime in question.
In so far as the instant
aspect of the matter is concerned, it was the vehement contention of the
learned counsel for the appellants, that Kamini Verma was declared medically unfit
to make a statement by Dr. D.P. Dogra PW11 at 12:20 hrs., on 28.7.2003. Pointing
out to Exhibit PW11/B, it was the submission of the learned counsel for the
appellants, that the medical report, showing that Kamini Verma was not fit to make
a statement, had been made on the ground that her pulse rate and blood pressure
were not recordable. According to the learned counsel, within just 40 minutes,
the same Dr. D.P. Dogra PW11 gave a report at 13:00 hrs., that Kamini Verma was
fit to record her statement.
Learned counsel for
the appellants, also invited the court's attention to Exhibit PW11/C, PW23/A and
PW26/A so as to point out a number of discrepancies. It was submitted, that
there are a number of cuttings/overwritings, of the time at which the
endorsements on dying declaration of Kamini Verma were recorded. It is
submitted, that the time has been altered from 12:20 p.m. to 1:00 p.m. This,
according to the learned counsel was done, to match with the time given by Dr.
D.P. Dogra PW11. Pointing to the endorsement of Dr. D.P. Dogra, it was
submitted that Dr. D.P. Dogra had endorsed the dying declaration at 13:00 hrs.
It was pointed out, that
the time of the endorsement made by ASI Jog Raj PW26 (under the dying
declaration of Kamini Verma) was recorded at 1:30 p.m., which was subsequently
altered to 1:00 p.m. to match with the time recorded in the endorsement made by
Dr. D.P. Dogra PW11. Additonally, it was the contention of the learned counsel
for the appellants, that the language of the dying declaration itself shows, that
the same was not a voluntary statement made by Kamini Verma, but actually the handiwork
of ASI Jog Raj PW 26, who had recorded the aforesaid statement. In this regard
learned counsel for the appellants pointed out, that various words and
observations were used in the dying declaration, which are in use of police personnel
(and/or advocates), but not in the use of common persons.
It is, therefore,
sought to be 23submitted that the dying declaration of Kamini Verma, allegedly recorded
at 13:00 hrs., on 28.7.2003 at Zonal Hospital, Chamba not being her own
voluntary statement, was liable to be discarded from the prosecution version. In
case the same is ignored, the entire prosecution story, according to the
learned counsel for the appellants, would crumble like a house of cards.
23.
We
have considered the last submission advanced at the hands of the learned
counsel for the appellants. There can be no doubt that there are certain
discrepancies in the time recorded in the dying declaration. Additionally, there
can also be no doubt that certain words which are not in common use have found place
in the dying declaration made by Kamini Verma. Despite the aforesaid, we find
no merit in the submission advanced at the hands of the learned counsel for the
appellant. It is not possible for us to accept, that Kamini Verma was not fit
to make her statement when she actually recorded the same in the presence of
ASI Jog Raj PW26 and Dr.D.P. Dogra PW11.
The very medical
report, relied upon by the learned counsel for the appellants, which depicted
that the pulse rate and blood pressure of Kamini Verma was not recordable, also
reveals, that on having been given treatment her blood pressure improved to
140/70 and her pulse rate improved to 120 per minute. This aspect of the medical
report is not subject matter of challenge. The fact that the incident occurred
on 28.7.2003 and Kamini Verma eventually died on 1.8.2003, i.e., 4 days after
the recording of the dying declaration also shows that she could certainly have
been fit to make her dying declaration on 28.7.2003. Her fitness was actually recorded
on the dying declaration by Dr. D.P. Dogra PW11.
A number of
prosecution witnesses reveal that she was conscious and was able to speak. Kamini
Verma after having recorded her statement before ASI Jog Raj PW 26, also repeated
the same version of the incident (as she had narrated while recording her dying
declaration) to her father Arun Kumar PW2, when she was being shifted from Chamba
to Amritsar for medical treatment. Moreover, Dr. D.P. Dogra PW11 appeared as a
prosecution witness, and affirmed the veracity of her being in a fit condition to
make the statement. There is no reason whatsoever to doubt the statement of Dr.
D.P. Dogra PW11. The question of doubting the dying declaration made by Kamini Verma
could have arisen if there had been other cogent evidence to establish any material
discrepancy therein.
As already noticed
hereinabove, three eye witnesses, namely, Deepak Kumar PW1, Sonia PW3 and Sumitri
Devi PW4 have supported the version of the factual position depicted in the
statement of Kamini Verma. It is, therefore, not possible for us to accept,
that the statement of Kamini Verma was either false or fabricated, or that, the
statement was manipulated at the hands of the prosecution to establish the guilt
of the appellants-accused nos.1 and 2 Dheeraj Verma and Deepak Verma, or that she
was not medically fit to make a statement.
The discrepancies in
recording time, as well as, the overwriting pointed out are too trivial to brush
aside the overwhelming oral evidence produced by the prosecution, details
whereof have been repeatedly referred to by us, while dealing with the various submissions
advanced at the hands of the learned counsel for the appellants. We, therefore,
find no merit even in the last contention advanced at the hands of the counsel
for the appellants.
24.
In
view of the above we hereby affirm the order passed by the Trial Court dated
30.12.2005 (in Sessions Trial No.55 of 2003) and also, the order passed by the
High Court dated 2.9.2009 (in Criminal Appeal No.27 of 2006). Both the appeals preferred
by appellants-accused nos.1 and 2, Dheeraj Verma and Deepak Verma are,
accordingly, dismissed.
..................................J.
(R.M. Lodha)
..................................J.
(Jagdish Singh Khehar)
New
Delhi
October
11, 2011
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